On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.

Judges Pressler, Baime and A. M. Stein. The opinion of the court was delivered by A.m. Stein, J.A.D.

Stein

We granted leave to appeal in this medical malpractice action from the Law Division's order denying plaintiffs' motion to vacate the voluntary stipulations of dismissal without prejudice executed by their former lawyer and to reinstate the complaint against defendants Isaac and Sullivan. We reverse and order the complaints to be reinstated against these two physicians. The motion judge incorrectly considered the reinstatement motion under the more stringent standards set forth in R. 4:50, dealing with review from final judgment, rather than the less restrictive "interest of justice" standards set forth in R. 4:42-2.

Plaintiff Bernard Lawler is now seventy-six years old. In early 1985 he visited his family physician complaining of bowel problems. The physician referred him to Isaac, a gastroenterologist, who performed a colonoscopy on plaintiff on July 23, 1985 at Warren Hospital. Isaac identified a polyp beyond the length of the sixty-seven-inch-long colonoscope. He concluded that the polyp was located on the right proximal transverse colon. Isaac then inserted a biopsy forceps through the scope and removed samples of the polyp. He then ordered a barium enema for plaintiff, which was performed at Warren Hospital on July 26, 1985. The barium enema results were interpreted by Sullivan, the radiologist, who indicated that a polyp was located in the right proximal transverse colon. Unfortunately, the hospital's radiological technician transposed the right and left sides of the X ray. The polyp was actually in the left descending colon.

On August 1, 1985, defendant Friedman and his assistant surgeon, defendant Ravanzo, operated on plaintiff. Friedman performed left and right colotomies on plaintiff, passing a sigmoidoscope down to the cecum and across the splenic flexure. He could not locate a polyp. While he was in the operating room, Friedman contacted Sullivan and Isaac to confirm the existence of the polyp. He also conversed with other doctors in the hospital. Sullivan confirmed his earlier conclusion as to the polyp's location as shown on the X ray. Isaac reaffirmed his opinion that the polyp was in the proximal transverse colon. Friedman performed a right hemicolectomy, removing approximately fifteen and three-quarter inches of plaintiff's right colon. The pathology report indicated that this section of plaintiff's colon did not have a polyp.

On August 16, 1985, Friedman again operated on plaintiff, this time performing a bowel resection. Plaintiff continued to complain of bowel problems following this surgery. He consulted Dr. D'Agostino, a gastroenterologist, who performed a colonoscopy and properly identified a mass near the splenic flexure (an abrupt turn in the colon near the lower end of the spleen, connecting the descending with the transverse colon). On November 18, 1985 Friedman operated on plaintiff for the third time, removing approximately twenty-four inches of plaintiff's left colon. A pathology report indicated that the polyp in the left colon was benign.

Plaintiff is incontinent. He often soils his clothing and sheets. He is unable to travel for more than one-half hour at a time and is afraid to eat out because he frequently soils himself. He is required to maintain a strict diet. His brief describes him as a "colon cripple." We do not regard this description as hyperbole.

Plaintiffs' initial complaint, filed on June 25, 1987, named Friedman, Ravanzo, Isaac and Warren Hospital as defendants. Their attorney thereafter received a medical report concluding

that all of the named defendants were negligent. The report also states:

There is also the possible suggestion in the medical records that a barium enema was performed . . . prior to surgery which improperly identified the area as being in the right transverse colon.

Thereafter, plaintiffs filed an amended complaint on October 14, 1987 joining Sullivan as a defendant.*fn1

Despite this report, on June 7, 1988, the associate handling the case for plaintiffs' law firm filed voluntary stipulations without prejudice dismissing Isaac and Sullivan as defendants. On October 28, 1988 he also signed a stipulation of dismissal, this time with prejudice, dismissing Warren Hospital -- the employer of the allegedly negligent X-ray technician.

In May 1989 the associate handling plaintiffs' file left the law firm representing plaintiffs and went to work for the attorneys representing Isaac. We were advised at oral argument that he has since left that firm. Plaintiffs' old law firm ...

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